In other words, sexual intercourse with a married woman amounts to adultery.

The central government on Wednesday contended that a provision of law dealing with adultery (Section 497 of the Indian Penal Code) should remain a criminal offence. It opposed a petition before the Supreme Court that seeks to amend the provision to make men and women equally liable.

The apex court is hearing a petition filed by non-resident Keralite, Joseph Shine, who has challenged the constitutionality of Section 497 IPC read with Section 198(2) of the Criminal Procedural Code (CrPc), which deals with prosecution for offences against marriages.

“Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds,” the government said in its affidavit.

What is adultery under Indian law?

Section 497 IPC reads as: “497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

Breaking it down what the provision says is: any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery. In other words, sexual intercourse with a married woman amounts to adultery.

The law does not confer any right on women to prosecute the adulterous husband, or the woman with whom the husband has indulged in sexual intercourse with. In simple words, the husband solely has been permitted to prosecute the adulterer.

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What is the government’s affidavit?

Last year in December, the top court had issued notice to the Centre in a petition challenging the constitutionality of Section 497 IPC that had been filed by Shine.

The Ministry of Home Affairs in its affidavit had stated that “striking down Section 497 of IPC and Section 198(2) of CrPc will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage.”

The ministry referred to a judgment passed in 1985, Smt. Sowmithri Vishnu v. Union of India, where it cited that “It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.”

A three-judge bench of the top Court headed by then Chief Justice YV Chandrachud had upheld the constitutionality of the provision in the case.